Should employers be liable in tort for their employees’ sexual assaults? Until recently, the universal answer was a resounding “no.” After all, an employer is only liable for their employees’ actions when the employee is acting within the course and scope of employment. And, of course, no employer “employs” someone for the purpose of sexually assaulting another. If courts adopt a new controversial provision of the Third Restatement of Torts, that answer may soon change – at least in some circumstances.
Recently, the American Law Institute adopted a “Special Rule on Vicarious Liability for Sexual Assault.” The Special Rule rejects the notion that employers can never be held liable in tort for their employees’ sexual assaults. Under the Special Rule, an employer can be held liable for an employee’s sexual assault in four instances:
- The nature or conditions of the employee’s employment create a reasonably foreseeable risk of sexual assault;
- The person is particularly vulnerable, by reason of age, mental capacity, disability, incarceration, detention, confinement, medical need, or other similar circumstance;
- The employer facilitates the sexual assault by providing the employee with substantial power, authority, or influence over the person; and
- The sexual assault occurs when the employee is performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control.
What Is Meant by “Particularly Vulnerable”?
The Special Rules provide a number of examples of various types of employment where an individual might encounter a “particularly vulnerable” individual. These employment positions include police and correctional officers, group and nursing home caregivers, counselors, transportation company employees, and youth sports coaches. The victims are generally those who are mentally or physically impaired patients at nursing homes and group homes, children, parishioners, asylum seekers, interns, hotel guests, and convenience store clerks. In sum, liability can attach when the nature of the employment puts the employee in a relationship of power, access, or control over the particularly vulnerable individual.
What Types of Industries Can Be Most Affected by the Special Rule?
Of course, any employer may have an employee, customer, client, or patient in a particularly vulnerable situation. It would appear, however, that the industries that would be most affected by the Special Rule would be healthcare, education, hospitality, and entertainment.
Will the Courts Adopt the Special Rule?
It remains to be seen whether courts will adopt the Special Rule. Some courts may be swayed by the analysis, however. The analysis refers to the Supreme Court decisions of Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. In these cases, the Supreme Court found that employers were strictly liable under Title VII for a supervisor’s sexual harassment (which can also include sexual assault). Employers could only avoid liability if the employee unreasonably failed to utilize the reporting procedures that the employer had in place, which could have prevented the harm. The reasoning behind the strict liability standard was that the employer bore some responsibility by giving the supervisor power that facilitated the sexual harassment. The same could be said for employers who place individuals frequently in the company of particularly vulnerable individuals, thus justifying imposing liability in tort.
What Should Employers Do Now?
Seemingly, the main goal is to ensure that employers do not place individuals who may sexually assault another in a position where they would be in the company of particularly vulnerable individuals. Conducting background checks is one avenue to make such a scenario less likely. Employers may also enhance their security measures, such as improving video surveillance. And, of course, it is always appropriate to maintain adequate insurance coverage to protect against these situations.
